he current healthcare ecosystem mandates efficiency and objectivism. The requirements to document, bill third party payors and actually get paid are becoming increasingly more rigorous and laborious. It is no longer enough to properly document and code what you do in your examination and treatment of a patient, it is essential that you can prove medical necessity and substantiate your clinical decisions with objective data.

Chiropractors believe they are immune and can fly under the radar of insurance audits and fraud investigations. Unfortunately, you can’t avoid the radar. Insurance companies have been establishing utilization profiles for years and they know your every move.

Emphasis and focus should be placed on strict compliance, meeting normative standards and employing proper testing and technology to generate objective, clinically-relevant data. Even well-intentioned outliers get audited.

Today's successful chiropractors are empowered with real data, not dogma, and are embracing evidence-based practice. Evidence-based practice incorporates objective data—data that is factual, unbiased, and unchanged by personal feelings or interpretations—to help determine the best course of treatment.

Unlike previous paradigms which relied heavily upon patients’ blind faith in their doctors, evidence-based practice seamlessly blends the doctor’s clinical expertise with research-proven diagnostic technology. Evidence provides peace of mind for the patient and the third party payor.

Objective data bolsters your clinical opinion and provides a means to monitor patient progress and effectiveness of treatment. Adjustments to the patient’s program of care can be made efficiently, resulting in improved outcomes and more cost-effective treatment.

Technology is the answer to cover your assets. One size does not fit all, however, so it is important to use the right tool for the job.

Static sEMG provides information about muscle firing while in the neutral posture. Taking only a minute or two to perform, this is the ideal quick screening tool. It shows the effect of subluxation on the muscles of the spine, along with postural influence, short leg, and head forward position. At minimum, Static sEMG is a form of electronic palpation, yet, unlike palpation, has great inter-examiner reliability. It displays an easy-to-interpret graphic to enhance patient awareness and education.

New university research has validated Standing Static sEMG studies as clinically valuable.1 Even more important, the Veterans Administration established the Static sEMG as capable of accurately tracking patient progress.2

Dynamic sEMG uses EKG electrodes attached to the skin, measuring muscle response continuously as the patient moves. This technology boasts over 7500 research papers published to date. Its ability to determine presence or absence of soft tissue injury was established in a major Superior Court decision in the State of Florida.3 The AMA has recently provided a specific CPT code for billing.

Dynamic sEMG has recently evolved into a more effective and efficient technology known as DynaROM sEMG, in part due to a meta-analytic review from The University of Michigan. Researchers found the clinical value of Range of Motion was significantly enhanced by incorporating Dynamic sEMG. By measuring and graphing ROM and Dynamic sEMG simultaneously, one can see if muscle guarding and bracing accompanies limited range of motion. If it does not, the patient is most likely magnifying symptoms.

Dynamic sEMG coupled with simultaneous computerized ROM is the only truly objective testing available to chiropractors for determining the presence or absence of soft tissue injury.1,4

Brandon Casey, partner at Casey Law Offices, states, “Attorneys like evidence, and by that I mean actual evidence-based treatment, not opinion.” He goes on to say “sEMG studies are the best proof of soft tissue injuries. In this day and age of skepticism, they are essential in a litigation case.”

With the latest in evidence-based technology, the process of providing insurers and attorneys with objective, physiologic data is simple and quick, requiring only a small time investment by the practitioner or trained assistant. Objective data leads to an objective doctor, creating clinical competence. The doctor who embraces and integrates such technology will sleep better, knowing the burden of proof lies in the insurer’s hands in an audit, as data wins over opinion 99% of the time.

Dr. Nancy Miggins has over 25 year’s clinical experience as a chiropractor. She excelled in the areas of procedures, ethical business practices and management. After spearheading the development of a integrative health and fitness center, she spent 6 years as director of this clinic. Although her main focus was in family practice, she also has aided Olympic Athletes and professional cyclists with optimizing sports performance through chiropractic. She is currently the Director of Clinical Applications & Product Development for Precision Biometrics, Inc. Contact at:
This e-mail address is being protected from spambots. You need JavaScript enabled to view it
or visit www.myovision.com or call 800-969-6961

David Marcarian, MA, founder of Precision Biometrics, and inventor of the revolutionary MyoVision 3G Wirefree PhysioMonitoring™ System. A former NASA researcher, Marcarian was awarded a $450,000.00 NIH grant to develop the MyoVision. As an expert witness, Marcarian was credited one of the largest PI awards in US history, and established the validity of sEMG in a major State Superior Court Decision. Recently the AMA selected his 3G Wirefree System as the “tool of choice” as presented in the medical text “The Practical Guid". Contact at:
This e-mail address is being protected from spambots. You need JavaScript enabled to view it
or visit www.myovision.com or call 800-969-6961

he biggest secret of personal injury is that there are no real secrets, only formulas for success and conversely, formulas for failure. Marketing and advertising in the form of breakfasts, lunches and dinners, theater and ballgame tickets, holiday gifts, newsletters, fliers, and e-mails are a waste of your money when considering a formula for success for the balance of your career. Marketing and advertising will drive a few patients into your practice, but once the lawyers see your work, that usually means you are “one-and-done”—they send you one patient and are done with you . . . forever. For a lawyer to be able to work with you, then your work must be admissible and you need to be the “best-of-the-best” through clinical excellence, which has nothing to do with your ability to treat patients successfully.

You may consider a “smoke and mirrors” strategy and employ a program to beat or “bust” the insurance companies’ computer systems. How many other doctors in the healthcare community practice those standards? The answer is very few, and it can be seen as a way to obfuscate the facts in order to gain more business from the legal community. This tactic can be used against you in the courtroom when representing your patients, or in front of a licensure board while defending your license by using tactics that are not consistent with other healthcare providers and specifically designed toward winning legal cases versus representing the findings of your patients. You do not need smoke and mirrors to win, only clinical excellence, and there are no shortcuts. This avenue renders potential significant exposure.

Clinical excellence is about being a true specialist in disc pathology, spine pathology, neuropathology, crash dynamics, triaging the injured, spinal biomechanical engineering, and MRI spine interpretation, as a start. It doesn’t mean you need a doctorate in each topic, but at the very least, you need formal credentials through the “right” continuing education courses and accredited bodies. You need a knowledge base in as many of these subjects as possible. How many of us know the precise difference between a herniated, bulged, protruded, and extruded disc? To succeed in personal injury, this question encompasses the bare basics, and many do not know the answers, yet want to be trauma-related practitioners.

The lawyer has many choices for referrals and your competition is not solely other chiropractors, but also orthopedists, neurologists, neurosurgeons, etc. With the credentials behind you, the legal community can have an opportunity to get either your testimony admitted in court or use you as leverage in settlements. The chiropractor also has one very big advantage over specialists in the other disciplines. Medical specialists, historically, see a patient once or twice, yet chiropractors treat a patient once, twice, sometimes three times a week for many weeks and understands the continuity of care, a critical necessity for both helping patients get well and helping lawyers win cases.

The personal injury community is changing based upon my years of market research in communicating personally with 80,000 to 90,000 lawyers in 22 states. In years past, lawyers were happy for your referrals as motivation to refer back to you. However, with the current, more stringent standards of the courts, lawyers are less interested in many of your referrals, particularly if they are “stuck” with you and your lack of credentials and deficient documentation, preventing them from being able to get your testimony admitted. What good is a case to a lawyer if the primary expert is unqualified and his or her work is not admissible in court? You must understand that a lawyer will not start with you if he or she cannot finish with you. We must never lose sight of the fact that the “end game” for lawyer is the courtroom. Although all parties realize they rarely get there, how you will fare on the witness stand is the way a lawyer will judge you initially and the basis for having a referral relationship.

Every other doctor in the community is begging for referrals unsuccessfully.

Should you, the chiropractor, be that clinically excellent doctor, have your work in an admissible format, have the credentials for a court to qualify you as an expert, and understand from a first-hand perspective the continuity of care, you now have an opportunity to win. All that is missing is a system to get the lawyer to run after you because if you ask for a referral, you lose. Every other doctor in the community is begging for referrals unsuccessfully. So if you do the same, then we go back to the definition of insanity, which is “doing the same thing and expecting different results.” You will lose, too. You need to get lawyers to run after you.

Once the legal community understands that you are an expert in triaging the injured and have the requisite credentials behind you with a network of medical specialists to refer to as clinically indicated, a significant paradigm shift will occur. Both the lawyers and those medical specialists will seek your counsel on cases and want you as the “personal injury quarterback.”

Lawyers will seek you out because you are the solution to their soft tissue cases and, generally, medical specialists are too expensive for them. Medical specialists will seek you out because they cannot afford to screen cases with such high malpractice rates. They want to start with prescreened patients who need their procedures. From the perspective of lawyers and medical specialists, it’s always about the finances of their practices. Through clinical excellence in an honest and ethical perspective, you will become that “quarterback” in personal injury cases.

This formula has worked for years in 43 different states and has been directly responsible for well over 100,000 personal injury referrals purely based upon the doctor of chiropractic’s clinical excellence. We do not market to lawyers at all, and neither should you because it doesn’t work, no matter the disguise of alcohol, food, or gifts. What lawyers want is to win their cases in an honest and ethical environment by using you as an expert. Once you become the reason they win, it’s game over and you perpetually receive their referrals for the balance of your career.

s many chiropractors recognize, personal injury (PI) practice can be very lucrative; however, it has one serious challenge; namely, developing mutually beneficial referral relationships with PI Attorneys. Having worked in the world of PI for over 20 years, it occurred to me that our promotional programs have all tended to focus on marketing from the perspective of the chiropractor, and that perhaps it would be more helpful to investigate the needs of attorneys instead. With this in mind, I began interviewing attorneys with the intention of finding out what would make them feel more comfortable when referring to chiropractors. As a self-proclaimed Technogeek, my goal was to find an efficient, high-tech solution to the problem. The fact that my subjects were not being interviewed by a chiropractor was a distinct advantage because they could speak freely without fear of offending me.

The last attorney I interviewed said the following: “With the chiropractor as primary, I never know, until the end, whether I have a good case or bad one. It almost always ends up as the professional opinion of the DC versus that of the MD. And, although I mean no disrespect, the public has a natural tendency to take the word of the MD.”

My response was to open up the AMA’s Practical Guide to Range of Motion Assessment at page forty-five and show him the chiropractic device which combines dynamic surface EMG (sEMG) and range of motion (ROM). I explained the invention in simple terms: "When we can see range of motion simultaneously with dynamic, or motion surface EMG, we are not only testing for limited range of motion, we are also determining the level of muscle guarding; a crucial piece of clinical information." He said, “Muscle guarding? … As presented in the AMA guidelines? This would definitely convince me that I had a good case. It would be a killer!” I went on to explain that the most impressive thing about it was its ability to weed out the symptom magnifiers from the truly injured. Frustrated, he asked, “Why don’t any of the DC’s I work with use this device? It would make my job so much easier.”

In the past dynamic sEMG and range of motion were measured separately. Expert witnesses would argue that range of motion results lacked validity because it was impossible to tell whether the patient was putting in full effort, regardless of the three test requirement. It was also effectively argued that with dynamic sEMG you could not tell if the patient was bending into full flexion or into other ranges of motion; again, invalidating the results. These arguments are bound to put doubts into the minds of both judges and juries and therefore weaken your case.

In 2005, researchers at the University of Michigan noticed a very interesting phenomenon: In their meta-analysis of all studies in which either dynamic sEMG and/or ROM had been used, it emerged that if the measures of both were combined, sensitivity and specificity improved dramatically; thus making this combined tool much more effective at establishing soft tissue injury. Referring to the value of dynamic sEMG in the combined test, John Gerhardt, MD (author of The Practical Guide to Range of Motion Assessment) stated that: “It significantly augments ROM data by providing objective assessment of effort.”

During the two cases presented below, both patients were seeking damages for soft tissue injury caused by automobile accidents.

In the graphs on the following page, the top half of the graph in Figure 1 shows Dynamic sEMG (muscle activity). The blue line represents the left lumbar and the red line the right. The bottom half of the graph displays the “real time” range of motion measured dynamically (the red line). In a normal individual at full flexion, muscles enter a state of relaxation as ligaments support the spine. This is known as the “flexion-relaxation response”, and is a reflex. When there is soft tissue injury, muscles fire in a protective response to pain, injury or spinal instability. This is referred to as “muscle guarding”.

As you can see from the graphs in Figure 2, Patient 1 is most likely a symptom magnifier while Patient 2 (Figure 3) is genuinely injured. One of the factors that make this combined test so powerful is the tool’s entirely objective evaluation of both patients; without the need for any verbal response or personal input from the patient. It is this fact that makes the test truly objective. Of course, this means that some of your patients’ injury claims will not be upheld. Although most doctors are initially fearful of this, they are quick to realize that the added credibility received when identifying this minority of symptom magnifiers will bolsters an attorney’s opinion of them as true expert witnesses.

This objective, indisputable evidence provides perhaps one of the best ways to garner an attorney’s respect, resulting in a solid source of referrals. Your use of this high tech tool, with its ability to generate impressive visual images, will not only save your attorney’s time and money, it will also maximize the settlement potential of the case.

How do you reeducate attorneys who have bought into the “old” notion that surface EMG lacks validity?

Literally every one of the attorneys interviewed, who stated that they would never consider using surface EMG for PI cases, were under the false impression that “surface EMG” referred specifically to static sEMG; the commonly used test with the back graphic and bar graphs that shows muscle activity about the spine. The only thing these two tests have in common is the term “sEMG”. Unlike static sEMG, which is performed in the neutral posture, the combined dynamic sEMG and ROM test is performed while the subject is in motion, making it a functional test that has proven itself indisputable in research studies as well as in the courtroom.

In 2003, the State of Florida attempted to remove dynamic surface EMG, along with a number of other diagnostic testing devices, from the list of approved tools for evaluating soft tissue injury in PI cases. Dr. Richard Merritt and I decided to sue the State of Florida. The case became one of the most important “test cases” in chiropractic history. The State of Florida was joined by over 300 insurers, turning the outcome of the case into a landmark decision. The Administrative Law Judge (ALJ) ruled that surface EMG was definitively valuable in evaluating soft tissue cases. Although this was appealed against by the insurers, we prevailed in the Superior Court. There is now a statute in Florida requiring reimbursement for dynamic surface EMG (Florida Statute 627.730-627.7405). Despite the enormous efforts of the insurers and the State of Florida to invalidate this tool, they failed. The case laid the groundwork for admissibility in any state in the country. The decision was 47 pages long and definitively validated surface EMG as medically necessary in evaluating soft tissue injury cases. The lead attorney in this case wrote a summary which provides attorneys using dynamic sEMG with advice on how this case can be used to establish admissibility.

2. The AMA’s CPT code: The code for billing Dynamic sEMG (96002 & 96004), establishes the validity of the tool. As the judge stated in the above case, “In order to be assigned a five-digit CPT Code, the procedure must be consistent with contemporary medical practice and be performed by many practitioners in clinical practice in multiple locations”.

3. Medical Text: A Practical Guide to Range of Motion Assessment establishes a precedent for the court that a medical text recommends the utilization of the combined dynamic sEMG and ROM test. It is shown as the tool of choice in examples of proper test technique.

4. EMG does not refer exclusively to Needle EMG: This is a common misconception presented by many reviewers for insurance companies. A simple review of the literature using Pubmed, clearly shows over 7,500 studies on surface EMG. This fact alone is enough to put this erroneous argument to rest.

With over 4 years since its appearance in the courts, this combined test is now getting the recognition it deserves. According to Brandon Casey, partner at Casey Law Offices, “Attorneys like evidence, and by that I mean actual evidence-based treatment, not opinion.” He goes on to say, “sEMG studies are the best proof of soft tissue injuries. In this day and age of skepticism, they are essential in a litigation case.” In his letter, Mr. Casey points out that in cases where the combined Dynamic sEMG and ROM exam were used, settlements averaged ten times what was typically offered by the insurer.

Attorneys are now being pushed into an “evidence-based” model that applies in law in the same that it does in chiropractic. Insurers, not immune to the economic slowdown, are not “settling” cases with the same frequency and ease as in the past. This is creating a demand for solid, objective data; affording the chiropractor willing to integrate new technology an opportunity to fill this “evidence gap” with the objective physiological data that attorneys now need.

The last attorney I interviewed said: “This new combined dynamic sEMG and ROM testing definitively goes beyond leveling the playing field – it makes the DC’s assessment more impressive than the MD’s.” By using objective data, the Chiropractor now has greater credibility than the IME because objective data will convince people 99 percent of the time.

Along with instant credibility with attorneys, there is another significant benefit to having solid objective data collected on your patients. Objective data protects you in an audit. We have even seen static sEMG, established as valid in a Superior Court Decision in California, which have protected doctors’ clinical decisions in an audit. Objective data can prove the need to treat, thus making it difficult for auditors to question your decision to do so. With more and more audits on the horizon, doctors who use technology to evaluate their patients can rest easy in the knowledge that they will be well-protected in the event of an audit.

Technology can be your best friend or your worst enemy. By finding the best product and support for your needs, you will have a great partner in building your practice. By following a few simple guidelines you will enjoy all the advantages of technology and none of the stress.

References:

A Meta-Analytic Review of 1. A Meta-Analytic Review of Surface Electromyography Among Persons With Low Back Pain and Normal, Healthy Controls. Geisser, Ranavaya, Haig, Roth, Zucker, Ambroz and Caruso published in the Journal of Pain, November 2005 p 711-726.

David Marcarian, MA, founder of Precision Biometrics, and inventor of the revolutionary MyoVision 3G Wirefree PhysioMonitoring™ System. A former NASA researcher, Marcarian was awarded a $450,000.00 NIH grant to develop the MyoVision. As an expert witness, Marcarian was credited one of the largest PI awards in US history, and established the validity of sEMG in a major State Superior Court Decision. Recently the AMA selected his 3G Wirefree System as the “tool of choice” as presented in the medical text “The Practical Guid". Contact at :
This e-mail address is being protected from spambots. You need JavaScript enabled to view it
or visit www.myovision.com or call 800-969-6961

Dr. Nancy Miggins has over 25 year’s clinical experience as a chiropractor. She excelled in the areas of procedures, ethical business practices and management. After spearheading the development of a integrative health and fitness center, she spent 6 years as director of this clinic. Although her main focus was in family practice, she also has aided Olympic Athletes and professional cyclists with optimizing sports performance through chiropractic. She is currently the Director of Clinical Applications & Product Development for Precision Biometrics, Inc. Contact at :
This e-mail address is being protected from spambots. You need JavaScript enabled to view it
or visit www.myovision.com or call 800-969-6961

An in-depth investigative report and analysis prepared for The American Chiropractor Magazine

DISCLAIMER: This treatise is a review and personal opinion on the new Florida No Fault/PIP regulations. You have to make individual clinical and billing decisions on how you want to care and bill your patients. You are strongly urged you to consult all applicable state and federal regulations prior to instituting any treatment or billing strategies. Should you have any questions, please consult either legal counsel or your state organization.

T

he change in Florida PIP protection went into effect January 1, 2013, and has significant changes. Many of these changes significantly alter how a chiropractor can treat and get reimbursed. Although there has been much said about the motives behind this legislation and the rhetoric about making changes under the banner of "Fraud Prevention," in the end, the people of the State of Florida will lose, and carriers will increase their profits. There will be no fraud reduction in the new legislation because there are no new provisions to prevent fraud, and there will be no premium reduction in rates to the insured as promised as that was already taken away from the people prior to signing the legislation into law. With that proviso, this article focuses on how to function and thrive within the new legislation.

Prior to digesting the new legislation and rendering a plan for success, one must understand that this is a huge opportunity for those that position themselves appropriately. The legislation prescribes a blueprint to go well beyond the $10,000 PIP cap if clinically indicated. The new legislation also provides a means for reasonably caring for patients at the usual and customary fees, not subject to 80% of the 200% Medicare fees, and allows for unlimited necessary care without being exposed to independent medical examinations (IMEs) or examinations under oath (EUOs).

New Regulation And Benefits Payable

As the new regulations stand now (with the likelihood of any modifications before the start date remote, according to reliable sources), the PIP cap is $2,500 for all providers. The new law has stricken any and all reimbursement for massage therapy or acupuncture. This dollar amount can be expanded to the previous cap of $10,000 should an "emergency medical condition" be determined and certified by a medical physician, physician’s assistant (holds a bachelor's degree), nurse practitioner (holds a master's degree) or dentist. According to Section 9. Section 627-732(16), the emergency medical condition is defined as:

(a) A medical condition manifesting itself by acute symptoms of sufficient severity, which may include severe pain or other acute symptoms, such that the absence of immediate medical attention could reasonably be expected to result in any of the following:

Serious jeopardy to the health of a patient, including a pregnant woman or a fetus.

Serious impairment to bodily functions.

Serious dysfunction of any bodily organ or part.

This definition ties in with Florida's utilization of a “verbal threshold,” which must be met in order for a third-party tort (worthy of lawsuit) to take place. Understanding the language will help you better position your practice. In states that have a verbal threshold, lawsuits for non-economic injuries are limited to serious injuries or death. “Serious” is defined differently in each state, but it often includes broken bones, severed limbs, etcetera. Unless you meet the defined criteria for a serious injury, you are precluded from bringing a lawsuit against the other driver.

Florida's Verbal Threshold Definition:

Significant and permanent loss of an important bodily function.

Permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement.

Significant and permanent scarring or disfigurement.

Death.

The significance of the threshold is that patients will have to meet one of these standards to be able to have any success in the legal system and for lawyers to be able to work with your patients. These statutory definitions are the guiding points in how we function under the law.

The $10,000 PIP cap is still in effect and is available to all providers should a patient have an "emergency medical condition" as described above. In order to have those benefits expanded, chiropractors must refer patients to one of the approved providers and in their documentation use the phrase "emergency medical condition" or be subject to the carriers' definition of what “serious” means. The statute is so vague that it leaves the entire process open to the interpretation of the carriers.

However, once they go back to their repetitive lifestyles, they will gradually feel the pain and try unsuccessfully to receive care (beyond the 14-day rule).

A challenge in working with medical specialists will be the timeliness of the referrals, the language in their reports and the guaranteed resultant scrutiny these doctors will certainly be exposed to in the form of much quicker and more frequent EUOs and IMEs. In addition, too many patients will be exposed to unnecessary drugs and surgery as you cannot expect the medical specialists not to practice medicine as they deem proper.

Should you get the requisite emergency medical condition documentation, you will be able to care for the patient with a $10,000 cap.

Another very significant law change is the reporting time. Previously, an accident victim had two years to report injuries. The new law allows only two weeks (14 days). This is significant as many accident victims who are less savvy might try to work through their pain or not have significant pain initially. However, once they go back to their repetitive lifestyles, they will gradually feel the pain and try unsuccessfully to receive care (beyond the 14-day rule). This is a significant issue as more than 20% of my accident patients over the last 31 years have waited three to four weeks until instituting care, which is common for the mild to moderate bodily injury victims. Should these patients not have gotten care, they would have serious joint issues over time only to become a burden to the private health insurer, Medicare and/or disability carriers.

Fees

The fees can be confusing because the statute has reimbursement regulations in two sections. In Section 627.736 (1)(a) it states that fees are reimbursable at 80% of all usual and customary. In Section 627-736(5)(f) it states that fees are reimbursable "for all other medical services, supplies and care, 200% of the allowable amount." (I) The participating physicians fee schedule Medicare Part B. The complete rule is that the carriers are required to pay 80% of 200% of Medicare. Once practitioners have received payment, it is recommended that they send the carriers a "Pre-PIP Suit Demand" should they pay only part of the fees, as many carriers notoriously pay less than billed.

Working In And Out Of The Florida Pip & No Fault Laws

You have options in caring and billing for your patients. The initial $2,500 is on the table without any changes in current billing, referral or documentation protocols. If the patient has any serious medical conditions, you can either take the route previously discussed or you can care for the patient should they have an attorney with a letter of protection (LOP) for any additional care clinically indicated. These patients will be considered valid candidates for legal representation if they have met Florida's Verbal Threshold of Serious Injury as previously described. Should they have met that standard, you can treat as often as clinically indicated.

The LOP is an agreement between you and the lawyer and is different than a lien. Unlike a lien, it is for a specific amount that has been pre-determined, and the lawyer agrees to protect that fee for you in settlement. In the State of Florida, all PIP payments must be repaid to the carriers in a lawsuit by the lawyers before any disbursements. Therefore, if the PIP coverage was $10,000 and paid to all providers, then the lawyer cannot earn $1 unless that $10,000 has been repaid first, and the lawyer must be awarded a settlement over $10,000 or they earn nothing. Therefore, if you treat over the $2,500 PIP cap, then the additional fees can be done under an LOP or private health insurance. This gives the lawyers a little more room to work and allows you to treat the patients by rendering only necessary care, avoiding the medical specialists whose care will not be indicated beyond the necessity of a letter to treat an emergency medical condition that is often within the chiropractic scope to treat.

Working Entirely Outside Of Florida No Fault/Pip

Should your patient either opt out by delaying care or find themselves beyond the regulatory 14 days mandatory reporting time for PIP coverage, then you can treat entirely outside of the coverage solely with an LOP or private health insurance. Many trial lawyers find this advantageous as both doctors and accident victims are not subject to the mandatory IMEs and EUOs that often give the carriers an unfair advantage in trials.

Although every case is subject to the verbal threshold of serious injury, not having a carrier's involvement during the treatment process gives many trial lawyers an advantage in preparing their cases. Although our focus as providers has nothing to do with the trial process, and we are concerned solely with necessary care, it is important to understand the entire medical-legal process.

LOPs have no cap and no carrier interference with care. In states like Connecticut that only have LOPs, the system offers many benefits to all parties, including carriers. The only downside to doctors is the lag between the treatment and settlement of the case when payment is rendered. However, once you get into a payment cycle, you will have a constant cash flow that potentially has much less stress and can be far more lucrative without fighting for every penny from a carrier determined not to pay your claim in spite of prompt pay laws.

Every paradigm of practicing with the Florida No Fault/PIP has its benefits and its drawbacks. The reality is that most practices will create a mix of situations where you will utilize all of the above scenarios. There are also numerous other factors in being successful in treating personal injury patients. When working with lawyers, at the end of the day, it will not come down to if the lawyer will work with you, but if the lawyer can work with you. Their ability to work with you has nothing to do with fee schedules or reimbursement criteria, but is solely based upon your knowledge base, formal credentials and ability to document.

icture yourself driving home late one night with your spouse from a concert downtown. Your normal route is under construction, so you have to detour through a part of town that you don’t ever like to be in, but certainly not at this hour. As you lean over to push the lock button on your doors, you realize there are not very many cars on the road at this hour, and your senses go on hyper alert.

All of sudden you look up and the car to your left swerves in front of you and has come to a complete stop. There’s no time for you to react, and you plow into the back of the vehicle, jolting your head forward.

As the dust settles and your adrenaline is pumping, you can’t think but help to yourself, “It’s like they came out of nowhere!”

This scenario is called a swoop and scoop, and it’s a classic method of fraudulently staging an auto accident. According to insurance companies PR departments and lobbyists this is an all too common scenario, and a source of billions of dollars in wasted resources. Many would argue that these blatantly illegal and fraudulent acts are isolated incidents that are perpetuated by a very small group of individuals, but there are numerous states where legislative battles are being waged based on the premise of saving consumers money by decreasing fraud.

Almost all efforts to make it more difficult for physicians to bill personal injury protection (PIP) insurance are grounded in these so-called “anti-fraud measures”. While fraud and abuse are very real concerns, the problem is that the proposed measures often do very little in actually combatting fraudulent activities. Several states are currently a battleground for major legislative changes that could impact the ability of chiropractors to help car accident victims recover from their injuries.

There are currently 12 states that still have no-fault auto insurance systems. The term “no-fault” refers to the fact that regardless of which driver was determined to have caused the accident both drivers are eligible for personal injury protection benefits through their own respective insurance carriers.

The 12 no-fault states as of this writing are Florida, Hawaii, Kansas, Kentucky, Massachusetts, Michigan, Minnesota, New Jersey, New York, North Dakota, Pennsylvania, and Utah. Each state’s laws differ dramatically with respect to the amount of PIP, litigation thresholds, and various other factors.

The concept of no-fault auto insurance was developed over 40 years ago by Robert Keeton and Jeffrey O’Connell, two law school professors who felt it would reduce the amount of wasteful litigation costs and allow policyholders to efficiently receive medical benefits and lost wages after an accident.

The statutory limits of PIP benefits vary widely state to state. New York drivers are eligible for $50,000, while motorists in Utah are required to carry only $3,000 in PIP benefits. In virtually every state where mandatory PIP benefits exist, insurance carriers are working hard to enact legislative changes to eliminate no-fault status or make access to benefits increasingly difficult.

National news has been made recently in Florida with the passage of House Bill 119 which significantly limits the ability of patients to receive access to treatment in the no-fault system. Florida has long been a popular destination for chiropractors, in large part because of the favorable personal injury laws and scope of practice. This bill essentially creates a two tier system of injuries, a fairly similar approach taken by the Canadian province of Ontario. After the crash the patient is eligible for $2500 in benefits that will cover treatment by an MD, DO, DC, PA, ARNP, or dentist. Massage therapy and acupuncture are no longer covered benefits under the new system in Florida.

If the $2500 is exhausted, an MD, DO, PA, or ARNP (notice chiropractors are blatantly discriminated against) must diagnose the patient with an “emergency medical condition” (EMC) so that the patient will be eligible for the remaining $7500 in benefits. In HS 119 an EMC is defined as:

“Acute symptoms of sufficient severity such that the absence of immediate medical attention could reasonably be expected to result in:

Serious jeopardy to patient health

Serious impairment of bodily function

Serious dysfunction of any bodily organ or part”

It is safe to assume that insurance companies will not simply reinstate the patient’s benefits on the written opinion of a medical provider. Determining whether a whiplash injury meets the criteria of an EMC will largely rest on the ability of physicians to provide objective diagnostic evidence of injury such as stress view x rays, Digital Motion X Ray (video fluoroscopy), or thin slice proton density MRI.

Eliminating chiropractic care as a viable option for accident victims will limit patients from treatment that has been shown to be highly effective for the treatment of whiplash.

It is obvious that “soft tissue injury”, as commonly treated by chiropractors following motor vehicle collisions will be a hotly contested issue. The criteria for an EMC is so loosely defined in the law that it will become even more important than in the past to utilize established standards of care and “gold standards”. The good news for patients and providers alike is that the American Medical Association Guides to the Evaluation of Permanent Impairment considers spinal ligament trauma to be a condition that qualifies for all of the criteria outlined in the new Florida law. Additionally, the National Guideline’s Clearinghouse, which falls under the purview of the Department of Health and Human Services has established clear protocols for the diagnosis and treatment of whiplash injuries.

It is quite likely that the insurance carriers will attempt to override the medical provider’s diagnosis of an EMC, so it will become paramount that there is concrete proof of ligament trauma in order to win the disputes. Since very few medical physicians have an appreciation for spinal ligament injuries on the level that chiropractors trained in evaluating motor vehicle collision occupant injuries do, this presents a huge opportunity, which we’ll discuss later.

Unfortunately, Florida is not the only state where battles are being waged over no-fault benefits. The New York State Senate Insurance Committee has held a series of hearings designed to prevent fraud and abuse. At face value this appears to be a very reasonable effort, and likely needed in many cases. Ellen Melchionni, president of the New York Insurance Association said the proposed legislation “contains numerous remedies, including giving insurance carriers adequate time to investigate fraud, encouraging efficient and fair settlement of disputes and creating tougher penalties for fraud.”

While no honest provider would ever want to see an increase in fraud, any provision that increases the amount of time insurance companies have to “investigate fraud” is typically a code word for delaying or denying claims. Carriers have a point system used to red flag a claim as fraudulent, as some of the measures used might alarm you. For example, if multiple patients from a single accident are being treated by the same doctor or have the same attorney, this could be viewed as potentially fraudulent by a carrier. The treatment of young children after a crash is also a potential fraud trigger. There is an absolute need to combat fraudulent activities like staged accidents and billing for services that weren’t rendered, but giving an insurance carrier more latitude to delay paying legitimate claims is not likely one of them.

Minnesota is another state where the auto insurance system is being targeted. No-fault benefits have existed in this state since 1975, and pressure from insurance companies is causing the Minnesota Senate Commerce Committee to consider changes in how claims are processed. According to Bob Johnson, President of the Insurance Federation of Minnesota, “(Some of the cost increases are) due to fraud and abusive and excessive treatment of patients by aggressive providers who know the system is susceptible to being gamed. Being able to apply cost controls to the system will help lower costs to consumers by reigning in providers who treat outside the mainstream of what is considered acceptable care.”

The problem with this statement is that the insurance companies likely have a very different determination of “acceptable care” than many providers. Accepted standards such as the Croft Guidelines can be used to provide a concrete standard of how much treatment is reasonable or necessary, but many insurance carriers will still likely consider this amount of treatment to be “abusive and excessive”.

PIP reform in New Jersey that is currently taking place focuses on the ability of providers to dispute bills with insurers, a process called arbitration. Marshall McKnight, spokesman for the New Jersey Department of Banking and Insurance, says over 58,000 arbitration filings were made and thousands were “frivolous”. In many no-fault states there are similar avenues that doctors can utilize when they believe that a claim is not being handled fairly by the insurer.

Even if you’re like a majority of the chiropractors reading this, and you do not practice in a no-fault state, it is still time to stand up for our profession.

While there are likely a small handful of doctors who abuse this system, placing limits a provider’s ability to dispute an unfair denial is a very slippery slope. In many states these arbitration processes are often the only leverage that exists for physicians to ensure that they treated fairly. If there is a need for reform it needs to take place with reasonable discussions between insurance carriers, providers, and legislators, not with press releases blanketing the news outlets written by insurance lobbyists.

If you currently practice in a no-fault state, it is important that you take action as quickly as possible. Your state association likely has a list of key state legislators involved in the decision making process, as well as a list of talking points to contact them with. Not only should you email your representatives yourself, but encourage your patients to do the same.

If you have a practice Facebook page or Twitter account, leverage the power of social media to spread the word to your patients and community. If the only voice they hear comes from the talking points provided to the local news outlets by the insurance company, it’s easy for them to develop biased and potentially harmful viewpoints. You can even set up an internet connected laptop in your waiting room underneath a sign explaining the need for their involvement, allowing them to easily email key decision makers.

Most importantly, there is massive opportunity that exists in a state of chaos. The chiropractic profession is at a crossroads, and I believe the next few years will go a long way in determining the future of our industry. The blatant attempts by the insurance industry to marginalize chiropractic and spinal ligament injuries can only be combated by making clear, objective documentation of ligament trauma the standard of care. I often use the analogy that these injuries are like “ACL tears in the spine”, but carry much more severe long term consequences.

There is no profession better educated and positioned to establish a position as experts in the field of ligament injury and conservative treatment strategies than chiropractic. This will create chances to educate personal injury attorneys as well as medical providers as to the serious consequences of these injuries, and how they can be properly diagnosed and treated. Now is the time in invest in personal injury training and coaching programs that can provide you with the ammunition to provide rock solid documentation and communicate effectively with attorneys and medical physicians.

Even if you’re like a majority of the chiropractors reading this, and you do not practice in a no-fault state, it is still time to stand up for our profession. As we’ve seen with the scope of practice discrimination in Texas, decisions are not made in a vacuum. When insurance companies develop a strategy to limit the rights of honest physicians in one state, this tactic often spreads nationwide. Contact your state or local association and get a list of key talking points as well as who you can email or call. This is not only the right thing to do for our profession, but it may ultimately help save your practice down the road.

Dr. Jonathan Walker is president of PI Marketing Elite, a company dedicated to helping doctors see more new PI patients. Visit www.pimarketingelite.com or call 904-616-1284 to speak with Dr. Walker directly.